BENNETT v. LINK et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/30/2016. 11/30/2016 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED.(nds)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CYNTHIA LINK, Acting Warden,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
November 30, 2016
Petitioner Dwayne Bennett (“Petitioner”) filed a pro
se petition (the “Petition”) for a writ of habeas corpus under
28 U.S.C. § 2254, challenging the validity of his guilty plea
based on newly discovered evidence, an alleged violation of
Brady v. Maryland, 373 U.S. 83 (1963), and ineffective
assistance of trial counsel. Magistrate Judge Henry S. Perkin
recommended that the Court dismiss the petition, and Petitioner
objected. For the reasons set forth below, the Court will adopt
Judge Perkin’s report and recommendation, overrule Petitioner’s
objections, and deny the Petition.
BACKGROUND AND PROCEDURAL HISTORY1
On August 10, 1991, Petitioner and several others
robbed a University of Pennsylvania medical student at gunpoint.
During the course of the robbery, Petitioner shot the victim in
the head at point-blank range, killing him. Report &
Recommendation (“R&R”) at 1, ECF No. 18, at 1. On January 20,
1993, Petitioner entered a negotiated guilty plea to firstdegree murder, robbery, conspiracy, and possession of an
instrument of crime in exchange for the Commonwealth’s agreement
not to seek the death penalty. Id.
The trial court accepted Petitioner’s guilty plea and,
on January 20, 1993, imposed a life sentence for first-degree
murder, along with lesser additional sentences totaling
seventeen and a half to thirty-five years in prison for the
remaining offenses. Id. at 2. Petitioner did not directly appeal
his sentence, and thus his judgments of sentence became final on
February 19, 1993. Id.; see also 42 Pa. Cons. Stat. Ann.
§ 9545(b)(3) (“[A] judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of
The facts recounted herein were taken from Judge
Perkin’s Report & Recommendation (“R&R”) and not objected to by
Pennsylvania, or at the expiration of time for seeking the
Over seventeen years later, on October 8, 2010,
Petitioner filed a pro se petition for collateral review under
the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. Ann. §§ 9541-9546. See id. The court appointed
counsel for Petitioner, and this newly appointed counsel filed
an amended PCRA petition on January 23, 2012. Id. In the amended
PCRA petition, Petitioner claimed that he had learned on August
10, 2010, through one of his co-conspirators, Giovanni Reid,
that the Commonwealth had made payments toward the living
expenses of three eyewitnesses to the crime during their
participation in a witness protection program prior to the
preliminary hearing in Reid’s case. Id.
The Commonwealth opposed the amended PCRA petition on
grounds that it was (1) untimely filed by almost fourteen years,
and (2) meritless because the PCRA court had already rejected
the same claim in Reid’s case twelve years earlier. Id. In
response to Petitioner’s claim that disclosing the payments to
eyewitnesses was required under Brady v. Maryland, 373 U.S. 83
(1963), the Commonwealth argued that Brady does not require the
disclosure of impeachment evidence prior to a guilty plea, and
further that evidence of the payments would not have met the
Brady materiality standard even if the case had gone to trial.
On July 24, 2012, following a hearing, the PCRA court
notified Petitioner of its intent to dismiss his amended PCRA
petition pursuant to Pennsylvania Rule of Criminal Procedure
907. Id. On August 24, 2012, without a hearing, the court
dismissed the PCRA petition as untimely on the basis that it did
not fall within any of the exceptions to the timeliness
requirements. Id. at 2-3. Petitioner appealed, and the
Pennsylvania Superior Court affirmed the dismissal of the PCRA
petition on February 20, 2014. Id. at 3.
On or about July 16, 2015, Petitioner signed the
instant pro se Petition, which was docketed by the Clerk of
Court on July 28, 2015. ECF No. 1. Petitioner challenges the
validity of his guilty plea based on unidentified newly
discovered evidence2 and an alleged Brady violation. See id. He
also argues that his trial counsel was ineffective for
permitting him to enter an unknowing and unintelligent guilty
plea due to a defective colloquy with the trial court. See id.
Petitioner states only that “the District Attorney’s
Office . . . withheld material evidence in his case relating to
various cash payments and other benefits that were given to
their witnesses.” Petition for Writ of Habeas Corpus, ECF No. 1,
at 8. Petitioner does not identify exactly what this evidence
is, presumably because “[t]he evidence in question was never
disclosed to Petitioner prior to or after his guilty plea
at 10. Finally, Petitioner asserts his innocence and contends
that any procedural default or bar or expiration of the statute
of limitations should be excused pursuant to Martinez v. Ryan,
132 S. Ct. 1309 (2012), or McQuiggin v. Perkins, 133 S. Ct. 1924
(2013). See id. at 12.
On November 17, 2015, this Court referred the case to
Judge Perkin for a report and recommendation. See ECF No. 5. On
May 20, 2016, the Commonwealth responded to the Petition,
arguing that the Petition is time-barred and equitable tolling
should not apply. See ECF No. 16. On May 26, 2016, Judge Perkin
filed his report and recommendation, recommending ultimately
that the Petition be denied with prejudice and dismissed without
an evidentiary hearing.
On June 16, 2016, this Court approved and adopted
Judge Perkin’s report and recommendation and denied and
dismissed the Petition with prejudice and without an evidentiary
hearing. ECF No. 21. The Court further ordered that a
certificate of appealability should not issue and directed the
Clerk of Court to mark the case closed. Id. The next day,
however, Petitioner filed objections to the report and
recommendation.3 ECF No. 22. Acknowledging that the Court’s order
dated June 17, 2016, may have crossed paths in the mail with
Though not filed until June 17, 2016, Petitioner’s
objections are dated June 13, 2016.
Petitioner’s objections, the Court entered an order on July 6,
2016, vacating its previous order dated June 16, 2016 (ECF No.
21), reinstating the Petition, and directing the Clerk of Court
to reopen the case. ECF No. 23.
On habeas review, a federal court must determine
whether the state court’s adjudication of the claims raised was
(1) contrary to, or an unreasonable application of, clearly
established federal law, or (2) based on an unreasonable
determination of the facts in light of the evidence presented.
28 U.S.C. § 2254(d). In conducting this review, the federal
court should bear in mind that “[a] habeas corpus petition
prepared by a prisoner without legal assistance may not be
skillfully drawn and should thus be read generously.” Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010); see also U.S. ex rel.
Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (“It is
the policy of the courts to give a liberal construction to pro
se habeas petitions.”).
A court may refer an application for a writ of habeas
corpus to a United States magistrate judge for a report and
recommendation. See Rules Governing § 2254 Cases, R. 10 (“A
magistrate judge may perform the duties of a district judge
under these rules, as authorized under 28 U.S.C. § 636.”). A
prisoner may object to the magistrate judge’s report and
recommendation within fourteen days after being served with a
copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R.
72.1(IV)(b). The court then “make[s] a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
Ultimately, the court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.” Id. A court is not required to review general
objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.
2011) (“We have provided that § 636(b)(1) requires district
courts to review such objections de novo unless the objection is
not timely or not specific.” (emphasis added) (internal
quotation marks omitted)).
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) instituted a one-year limitation period to a
petition for a writ of habeas corpus by a person in custody
pursuant to the judgment of a state court. See 28 U.S.C.
§ 2244(d)(1). This period runs from the latest of the following:
the date on which the judgment became final by
the conclusion of direct review or the expiration
of the time for seeking such review;
the date on which
of the Constitution
is removed, if the
filing by such State
the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
applicable to cases on collateral review; or
the date on which the factual predicate of the
claim or claims presented could be discovered
through the exercise of due diligence.
the impediment to filing an
by State action in violation
or laws of the United States
applicant was prevented from
Id. Because AEDPA was not signed into law until April 24, 1996,
the Third Circuit has held that “habeas petitions filed on or
before April 23, 1997, may not be dismissed for failure to
comply with § 2244(d)(1)’s time limit.” Burns v. Morton, 134
F.3d 109, 111 (3d Cir. 1998). This means that if direct review
of a prisoner’s criminal conviction ended prior to AEDPA’s
effective date, then the prisoner had at least one year from
April 24, 1996 (i.e., until April 23, 1997), to timely file a
habeas petition. See id.
AEDPA allows for statutory tolling of the one-year
limitation period while other collateral review is pending. See
28 U.S.C. § 2244(d)(2). In addition, courts have permitted
equitable tolling under certain circumstances. “Generally, a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way” of timely filing. Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). In this Circuit, equitable tolling may be
permitted under any of the following three circumstances: “if
(1) the [Respondent] has actively misled the [Petitioner], (2)
if the [Petitioner] has in some extraordinary way been prevented
from asserting his rights, or (3) if the [Petitioner] has timely
asserted his rights mistakenly in the wrong forum.” Fahy v.
Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999)). “In non-capital cases,
attorney error, miscalculation, inadequate research, or other
mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling.” Id.
Additionally, federal courts have “equitable
authority . . . to overcome expiration of the statute of
limitations governing a first federal habeas petition” by
“invok[ing] the miscarriage of justice exception.” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1934 (2013). Under the miscarriage of
justice exception, “a credible showing of actual innocence may
allow a prisoner to pursue his constitutional claims
([including] ineffective assistance of counsel) on the merits
notwithstanding the existence of a procedural bar to relief.”
Id. at 1931; see also Herrera v. Collins, 506 U.S. 390, 404
(1993) (“[A] petitioner otherwise subject to defenses of abusive
or successive use of the writ may have his federal
constitutional claim considered on the merits if he makes a
proper showing of actual innocence.”). A credible showing of
actual innocence requires “clear and convincing evidence that
but for constitutional error at [a petitioner’]s sentencing
hearing, no reasonable juror would have found him eligible for
the death penalty under [applicable state] law.” Sawyer v.
Whitley, 505 U.S. 333, 350 (1992).
Judge Perkin recommended that the Petition be denied
because it is time-barred and cannot be rendered timely by
either statutory or equitable tolling. The Court agrees.
Petitioner’s judgment became final on February 19, 1993, which
was thirty days after his sentencing and thus his deadline to
file a direct appeal to the Pennsylvania Superior Court. Because
this date fell before the enactment of the AEDPA, Petitioner had
until April 23, 1997, to file a federal habeas petition.
Instead, Petitioner waited until July 16, 2015 to file his
Petition, thereby rendering the Petition over eighteen years
late.4 We agree with Judge Perkin that no alternate date under 28
July 16, 2015 is the date on which Petitioner signed
the Petition. The Clerk of Court did not docket the Petition
until July 28, 2015. See ECF No. 1.
U.S.C. § 2244(d)(1) applies, and Petitioner is not entitled to
statutory or equitable tolling because Petitioner “fails to
allege that some extraordinary circumstance prevented him from
asserting his rights in a timely habeas corpus petition and
fails to demonstrate that he exercised reasonable diligence in
investigating and bringing his claims.” R&R at 9.
Petitioner objects to Judge Perkin’s recommendation on
the basis that Judge Perkin “erred in failing to correctly apply
Martinez v. Ryan and McQuiggin v. Perkins as a means to overcome
any questions about the timeliness of this federal action.”
Objs. at 3. He argues that his untimeliness should be excused
pursuant to Martinez because his trial counsel rendered
ineffective assistance “by agreeing and allowing the trial court
to set forth a facially defective colloquy,” and further by
“allowing the entry of a guilty plea without first being assured
that [Petitioner] had a complete understanding of the law in
relationship to the facts of the case.” Id. at 4. Petitioner
also invokes McQuiggin as a means for overcoming untimeliness,
claiming that “prior to pleading guilty, the [Government’s]
withheld evidence . . . establish[ed] that witnesses were
provided with benefits to ensure their appearance at the
Preliminary Hearing for the purpose of presenting a prima facie
case.” Id. at 5.
Petitioner’s objections largely reiterate claims from
his Petition that Judge Perkin has already addressed. Judge
Perkin found specifically that “Petitioner’s claim of actual
innocence does not serve to equitably toll the statute of
limitation” under McQuiggin because Petitioner does not offer
any new evidence supporting his claim of actual innocence. R&R
at 9-10. He also found specifically that “Martinez . . . cannot
afford Petitioner an alternate start date for the AEDPA statute
of limitation because the Supreme Court in Martinez did not
recognize a constitutional right to counsel in initial review
collateral proceedings and did not create a freestanding
constitutional claim for defendants to raise.” Id. at 6.
The Court agrees with Judge Perkin that Petitioner
meets neither the Martinez nor the McQuiggin standards to excuse
untimeliness. Petitioner points to no new evidence supporting a
claim of actual innocence under McQuiggin, nor do the
circumstances of his case excuse his untimeliness under the rule
announced in Martinez.5 Further, the Court agrees with Judge
Perkin that “[e]ven if Martinez could be viewed as providing an
The Supreme Court held in Martinez that a habeas
petitioner may overcome a procedural default if the petitioner
had no counsel or ineffective counsel in an initial-review
collateral proceeding, provided that this initial-review
collateral proceeding was the first designated opportunity for
the petitioner to raise his ineffective-assistance claim. See
Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012).
alternate state date for the AEDPA statute of limitation, this
claim would still be untimely because it would have to be
brought within one year after March 20, 2012, the date that
Martinez was decided.” Id. at 6-7.6
Finally, even assuming that the factual predicate of
Petitioner’s alleged Brady violation claim was not discoverable
through the exercise of due diligence until August 1, 2010, and
even assuming that this would entitle him to tolling of the
period during which his PCRA petition was pending,7 Petitioner’s
deadline to file a habeas petition containing this claim was
December 15, 2014. The Court therefore concludes that the
Petition is untimely, and the untimeliness cannot be excused.
CERTIFICATE OF APPEALABILITY
A petitioner seeking a certificate of appealability
must demonstrate “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (“When the district court
Instead, Petitioner did not bring his claim until July
It is not entirely clear from the state court record
whether a final decision was ever rendered on Petitioner’s pro
se PCRA petition filed on October 8, 2010. This analysis
assumes, however, that Petitioner would be entitled to tolling
between that date and February 20, 2014, i.e., the date on which
the Pennsylvania Superior Court affirmed the dismissal of his
amended (and counseled) PCRA petition.
denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.”). “A petitioner satisfies
this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because Petitioner has not made a substantial showing
of the denial of his constitutional rights, the Court declines
to issue a certificate of appealability in this case.
For the foregoing reasons, the Court will adopt Judge
Perkin’s Report & Recommendation, overrule Petitioner’s
objections thereto, and deny the Petition for a writ of habeas
corpus without an evidentiary hearing. The Court declines to
grant a certificate of appealability.
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